Tuesday, February 17, 2009

Recent Legal Victories Uphold Indigenous Land Rights

Recent legal victories affirm rights of indigenous peoples to ownership and control of their ancestral lands - pressure on holdout nations mounts

by Perry H. Chesnut, Editor NRN

Published January 14, 2009

On January 8, 2009, we published the UN press release in which the special rapporteur for indigenous rights praised the Nicaraguan government for demarcating and granting legal title to ancestral lands belonging to the Awas Tingni Community, an indigenous people who occupy an area on the Atlantic Coast of the country.

This victory of a small indigenous community came after more than a decade of struggle and is important for indigenous people not only in the Americas, but around the world because, as stated by the press release, "This was the first case in which an international tribunal with legally binding authority found a Government in violation of the collective land rights of an indigenous group, setting an important precedent in international law."

Although the United States and Canada are members and purport to be staunch supporters of the Organization of American States (OAS), both have failed to ratify the organization's American Convention on Human Rights. Such ratification not only adopts the articles of the convention that define the duties and obligations of nation-states to indigenous peoples, but also serves as a legally binding acceptance of the jurisdiction of the Inter-American Court on Human Rights.

Despite their much-trumpted claims of being champions of human rights, the U.S. and Canada have a long history of rejecting international declarations of the rights of indigenous peoples. As everyone who follows these issues knows, out of the entire UN General Assembly, only the U.S., Canada, Australia and New Zealand voted against the UN DRIP that was enacted on September 13, 2007. And as we reported recently in OAS Moves Forward on DRIP Tailored to Needs of Indigenous Peoples in Western Hemisphere - U.S. Expresses "Reservations", the "U.S. government has submitted statements to the [OAS] working group outlining its general reservations about the outcome of each negotiation session" in the drafting of an OAS American Declaration on the Rights of Indigenous Peoples.

It seems obvious that the U.S. and Canada are unlikely to ratify any human rights treaty that would allow aggrieved Indian tribes and nations to bring cases against them in any international tribunal - for the very reason that such tribunals are not captive instruments of the powerful global corporations that control U.S. and Canadian policy. For the present, U.S. and Canadian indigenous groups must resort to their own national courts and legislatures, which are riddled with obvious conflicts of interest and hardly unbiased.

Having said this, however, I should note that of the OAS' thirty-five member nations, twenty-four have ratified the Convention on Human Rights and twenty-two have officially accepted the jurisdiction of the Inter-American Court on Human Rights. For these nations, the decision is a legally binding precedent that upholds the right of indigenous peoples to ownership and control of their ancestral homelands. As James Anaya, who was present at the land titling ceremony said, "In addition, it provides a model for other Governments to comply with their international legal obligations to recognize and protect the rights of indigenous peoples to their traditional lands and resources in practice."

This landmark decision upholding Indigenous land rights is the first to come from an international tribunal. But there have been similar decisions won by indigenous groups in the supreme courts of their own countries (Mayan Indians in Belize in October 2007, and Indians in Brazil in December 2008). One suspects that a tidal wave of international public opinion recognizing the important role that indigenous peoples play in the protection of the planet and its ecosystems, as well as the growing global demand for basic human rights is now beginning to drive court decisions. If so, it will not be long before countries that refuse to sign and live up to human rights and indigenous rights treaties will be seen as pariah states that intend to continue their past practices of genocide, colonialism and exploitation of their native populations. Eventually, the citizens of hold-out countries such as the U.S., Canada, Australia and New Zealand will demand that their governments sign and ratify the various human rights treaties and live up to their responsibilities as members of the greater global community.

One final point I would like to make regarding the Awas Tingni Community v. Nicaragua case. The Awas Tingni Community would not have made it to the Inter-American Court on Human Rights had they not received the ongoing legal assistance of the Indian Law Resource Center with offices in Helena, Montana and Washington, D.C. Mr. James Anaya, Professor at the University of Iowa College of Law and member of the Indian Law Resource Center; Ms. Maria Luisa Acosta, associate attorney in Nicaragua; and Mr. Todd Crider of the firm Simpson, Thacher & Bartlett all assisted the Awas Tingni in bringing their case before the OAS Inter-American Commission on Human Rights and served as "Legal Advisors to the Commission" in its pursuit of the case in the international court.

For more information about this landmark case in international law upholding the land rights of indigenous peoples, you can find links to copies of the complaint and the court's decision, as well as an archive of articles that have been written about the case on this page at the Indian Law Resource Center.

© Copyright Alliance for Indigenous Rights 2009

Native Rights News hereby grants permission for this article or portions of it to be copied and republished on condition that the author and Native Rights News is given attribution. In addition, if the article or a portion of it is published over the Internet, a link to this page must be included.

Posted By Perry Chesnut, Editor to Native Rights News at 1/14/2009 09:41:00 AM

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